Dans un arrêt du 24 novembre 2020 (Wikingerhof GmbH & Co. KG contre Booking.com BV, n° C-59/19), la Cour de justice s’est prononcée sur la compétence des juridictions dans l’hypothèse d’une position dominante. Le litige opposait une société allemande (Wikingerhof GmbH & Co. KG) qui avait conclu un contrat avec la société Booking.com mais qui considérait que les conditions contractuelles que lui opposait cette dernière n’avaient été acceptées qu’en raison d’un abus de position dominante de cette société.
La société Wikingerhof avait saisi une juridiction allemande « visant à ce qu’il soit interdit à Booking.com d’apposer au prix indiqué par Wikingerhof, sans le consentement de cette dernière, la mention « prix plus avantageux » ou « prix réduit » sur la plate-forme de réservations d’hébergement, de la priver de l’accès aux données de contact que ses partenaires contractuels fournissent sur cette plate-forme et, enfin, de faire dépendre le positionnement de l’hôtel qu’elle exploite, lorsque des demandes de recherches sont formulées, de l’octroi d’une commission excédant 15 %. ». Celle-ci s’est estimée incompétente et la Cour d’Appel saisie a confirmé le jugement de première instance.
L’affaire a été portée devant la Cour de cassation allemande qui a posé une question préjudicielle à la Cour de justice reprise en ces termes : l’article 7, point 2, du règlement no 1215/2012 doit-il « être interprété en ce sens qu’il s’applique à une action visant à faire cesser certains agissements mis en œuvre dans le cadre de la relation contractuelle liant le demandeur au défendeur et fondée sur une allégation d’abus de position dominante commis par ce dernier, en violation du droit de la concurrence. »
La Cour considère que « lorsque le demandeur invoque, dans sa requête, les règles de la responsabilité délictuelle ou quasi délictuelle, à savoir la violation d’une obligation imposée par la loi, et qu’il n’apparaît pas indispensable d’examiner le contenu du contrat conclu avec le défendeur pour apprécier le caractère licite ou illicite du comportement reproché à ce dernier, cette obligation s’imposant au défendeur indépendamment de ce contrat, la cause de l’action relève de la matière délictuelle ou quasi délictuelle, au sens de l’article 7, point 2, du règlement no 1215/2012. ».
Or, en l’espèce, ce n’était pas l’interprétation du contrat qui était indispensable pour établir le caractère licite ou non du comportement de Booking.com mais au contraire, c’était l’interprétation de la loi sur les positions dominantes qui était indispensable pour savoir si les agissements de Booking-com pouvaient être qualifiés d’illicites. La Cour a donc admis logiquement que la matière concernée était bien délictuelle ou quasi délictuelle.
En conséquence, elle a jugé que « L’article 7, point 2, du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprété en ce sens qu’il s’applique à une action visant à faire cesser certains agissements mis en œuvre dans le cadre de la relation contractuelle liant le demandeur au défendeur et fondée sur une allégation d’abus de position dominante commis par ce dernier, en violation du droit de la concurrence. »
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